A citizen of
Mexico who used the name and birth certificate of another in gaining permanent
residency status here need not necessarily be deported based on his deception,
the Ninth U.S. Circuit Court of Appeals has held, invoking a Supreme Court
opinion handed down June 22.

The
precedent cited in Friday’s Ninth Circuit memorandum opinion is Maslenjak v.
United States.
There, the high court held that a person cannot be convicted of knowingly
making a false statement under oath in a naturalization proceeding unless there
is a nexus between the false statement and the gaining of citizenship.

Two
members of the Ninth Circuit panel—Judges Stephen Reinhardt and Kim
Wardlaw—signed the majority opinion, and Judge Ferdinand Fernandez provided a
brief opinion concurring in the result, only. All three jurists agreed that the
Board of Immigration Appeals must reconsider the application of Mario Godoy
Dorado—falsely using the name of Jose Roberto Sandoval—for cancellation of
removal in light of Maslenjak.

The
court chose to refer to him as “Sandoval.”

The
board had dismissed an appeal of an immigration judge’s determination that
Sandoval, because of his ploy, was not “lawfully admitted for permanent
residence” and was therefore ineligible for a cancellation of the removal
order.

Reasoning Is
Applicable

Reinhardt
and Wardlaw acknowledged that the Supreme Court, in Maslenjak, “interpreted a
different statute than the one at issue”—there, dealing with a criminal offense
in obtaining citizen through a falsehood. They said, however, that the holding
in that case “nevertheless bears upon our analysis.”

In
a rare appellate court pronouncement as to the credibility of a witness, the
judges said that “Sandoval credibly testified that he used a false birth
certificate as an identification document when he applied for lawful permanent
resident…status in 1990 because he had difficulty obtaining his own birth
certificate from Mexico.”

The
immigration judge who initially heard the matter, they noted, found no evidence
that Sandoval would not have failed to qualify using his true identity.

“We
agree that under the available evidence, Sandoval was likely eligible to adjust
status under his own name,” the judges said.

They
remanded the case to the board “to consider in the first instance whether, in
light of Maslenjak, a noncitizen is
‘lawfully admitted for permanent residence’ if that person would have qualified
for permanent residency status ‘regardless of any misrepresentations’ ” that
were not disqualifying, in and of themselves, or would not “predictably” have
led to facts compelling denial of that status.

The
judges said that if the board found the “causual nexus” requirement of Maslenjakapplicable,
“then it should also decide whether Sandoval’s submission of someone else’s
birth certificate rendered him substantively unqualified for admission” as a
permanent resident.

“The
panel will retain jurisdiction over this petition,” they provided.

Fernandez
said he agrees that the board should reconsider the matter in light of Maslenjak, but declared:

“[O]n
this case, I see no reason to say more than that. Moreover, I see no reason to
retain jurisdiction over the case.”

Oral Argument

At
oral argument on July 12, Sandoval’s lawyer, Christian De Olivas, told the
panel:

“What
I would like this court to consider is the request that the government prove a
little something extra, beyond the fraud.”

He
said:

“I
think the government wants to say, ‘You know what? There is fraud in this case,
the birth certificate. That should be enough.”

Wardlaw
questioned whether the fraud has “to be material,” and De Olivas said he was
coming to that. The judge declared:

“Oh,
good. Get to that.”

She
and Reinhardt, in their questioning, signaled an intent to reverse, while
Fernandez said nothing.

Deputy
U.S. Attorney David Kim underwent rapid-fire questioning by Reinhardt, being
allowed to respond only in partial sentences before a being interrupted with
another query.

“Are
you sure you don’t want to go to mediation and use some common sense in this
case?” Reinhardt asked.

He
questioned whether the issues in the case do not go “beyond legalities,” asked
whether it is not so that if Sandoval “had produced the right certificate, he
would be OK,” and inquired: